Detention Practices in Canada: a Comparison

Canada is often regarded as an exemplary industrialized democracy that excels at handling immigration issues and is welcoming to refugees and migrants. The truth, however, is far from perfect in relation to detention of irregular migrants and asylum seekers. While there are certain areas where Canada’s immigration detention system appears to be fair, or at the very least in comparison to Bulgaria’s, the country is far from the perfect migrant receiving and integrating state it is perceived as being.

In Canada, the number of persons in detainment seems to be decreasing from the 8,739 of 2012-2013 to the 6,251 of 2016-2017 (Canadian Border Services Agency (CBSA), 2018). Comparatively, Bulgaria’s number of detainees is on the decrease as well, with a total of 11,902 detentions ordered in 2015 falling to 2, 989 in 2017 (Asylum Information Database (AIDA), 2018). In Canada, officers with the CBSA have the discretion to arrest foreign nationals and permanent residents for detention if the person in question is unlikely to appear for examinations, does not provide adequate identification, is considered a danger to the public, or is inadmissible on the grounds of security. Moreover, nearly all Bulgarian police officers are authorized to issue detention orders, utilizing similar reasons for arresting and detaining somebody in accordance with the Law on the Foreigners in R. Bulgaria (LFRB). The reasons to detain are either one of risk of absconding, or obstructing the execution of the deportation order issued.

Before criticizing the Canadian detainment system, it must be understood that there are several areas the federal government and the CBSA should be commended for. One such area where Canada is moving in a positive direction is in the bail system. In Canada, the bail system works as an alternative to detention and exists because of the Toronto Bail Program (TBP), an agency funded by the government since 1996 (International Detention Coalition (IDC), 2015). The TBP identifies eligible detainees for bail through screening, and then supports them when they make their application. Eligible detainees are particularly suitable for release if their application is supported by a bondsperson, a family or community member that agrees to pay a monetary bond up front for the detainee to comply with conditions for their release (IDC, 2015); The program costs 10-12 Canadian dollars per person per day, paid by either the bondsperson or the detainee. Interestingly, in many cases of eligible detainees, the TBP itself acts as the bondsperson when there is no family or willing community members.

In contrast with Canada, Bulgaria’s LFRB was amended in 2017 to introduce alternatives to detention, in addition to the previously existing single alternative of weekly reporting to police, such as document surrender and financial guarantee. Nevertheless, the AIDA report (2018) found that in practice alternatives are not considered prior to detention. In a sense then, Bulgaria and Canada are similar for alternatives to detention only coming into play following detention itself, albeit Bulgaria does not possess Canada’s 48-hour rule. Moreover, there must be some appreciation for Canada’s regular review system. After 48 hours of detainment, if the detainee has not been already released, the Immigration and Refugee Board holds a detention hearing. If the detainee is not released after the first hearing, then there is a subsequent hearing 7 days after, and then once a month until there exist satisfactory grounds for release (IDC, 2015; CBSA 2018). By contrast, Bulgaria has no ex officio initial judicial review, and the 6- and 12- month compulsory judicial review of the continuation of detention was repealed with the amendment of the LFRB in 2017.

Unfortunately, despite this regular review system that the CBSA and federal government have in place, there is a serious problem with length of detention in Canada. To be more specific, immigration detention in Canada is indefinite. This implies that there is essentially no maximum to the time limit for the duration of irregular migrants in detainment (Global Detention Project (GDP), 2012; Silverman, 2014; Canadian Council of Refugees (CCR), 2015). While the average length of detention is approximately 22 days for foreign nationals, this is regrettably not the case for a number of irregular migrants and asylum seekers in the country (CBSA, 2018). In one instance, the Global Detention Project (2012) found that a rejected Iranian asylum seeker was released in 2011 after “six years…because he refused to sign his deportation papers”. A more recent example is that of Ebrahim Toure, a Gambian national lacking his documentation, who has been and continues to be in detainment since 2013; the reason for his lengthy detainment has been defended by the CBSA as a way to prevent him from absconding his difficult to arrange deportation (Kennedy, Feb. 25, 2018). Bulgaria, on the other hand, does have a maximum for release, which is 18 months. While 18 months is extremely lengthy in its own right, it is very interesting to see that Bulgaria has a maximum period while Canada simply has none at all. The legal source of this limitation is in European law, which Bulgaria, as a member state is required to transpose into national law – specifically, Directive 2008/115/EC, or the Return Directive.

Bulgaria has been found to mix asylum applicants with irregular migrants in its two pre-removal centers, a practice which has merited much criticism (AIDA, 2018). Yet, Canada is not free of making poor decisions with regards to where it places asylum seekers and irregular migrants either. Canada has at its disposal three Immigration Holding Facilities (IHCs); one in Toronto, Ontario, one in Laval, Quebec, and a much smaller one in British Columbia. The total capacity of all three facilities in Canada is that of 300 places, the total number of just one of Bulgaria’s pre-removal detention centers (GDP, 2012; AIDA, 2017). Because of this lack of space in Canadian facilities, the CBSA and federal government has opted to increasingly use provincial prisons for detention (GDP, 2012; Silverman, 2014); in 2010, 35% of the 9,420 detainees were housed in provincial prisons, but this percentage has most likely dropped given that the current total number of detainees in Canada is around 6,000 (GDP, 2012; CBSA, 2018). However, limited capacity is not the only reason for sending detainees to provincial jails, as it is also because many apprehensions are made in regions without IHCs, but also because the final decision lies with the CBSA whose discretion is often vague (Rayner, 2017).

The conditions of the IHCs, and to a greater extent the maximum security provincial prisons, are of poor quality according to numerous NGO and news reports (CCR, 2015; Kassam, 2016; Harris 2017; Rayner, 2017). There have been several complaints made by detainees that nutrition and ventilation are of a very poor quality (IHRP, 2016). Furthermore, detainees have protested against their doors remaining open at night, significantly limiting privacy. Possibly the most surprising discovery about detainment in Canada is that in many cases immigration detainees are not segregated from the convicted criminals that inhabit the provincial prisons (Kassam, 2016). These conditions are not entirely dissimilar from what has been described in the Bulgarian pre-removal detention centers, where nutrition is poor, detainees of various types are mixed together in the same cells, walks outside are limited, and usage of washrooms at night is restricted by the guards locking the rooms (Center for Legal Aid – Voice in Bulgaria, 2016). One saddening aspect to the detainment facilities and prisons in Canada is that they have hosted over 16 deaths in the last decade. The causes of these deaths range from of a lack of treatment for medical to suicide (Kassam, 2016; Keung, 2017). Thus, there is evidence of limited care for the needs of the detained in Canadian facilities. Comparatively, there is no official data on deaths in Bulgaria’s detention facilities.

Children are detained in both Canada and Bulgaria; a practice NGOs like the Canadian Council for Refugees (CCR) or the UNHCR are highly critical of. When it comes to the Bulgarian case the LFRB specifically prohibits the detainment of unaccompanied children (AIDA, 2018). Unfortunately, this does not prevent children from being detained in pre-removal facilities. It has been discovered that unaccompanied children are simply “assigned” to an adult that they arrived in Bulgaria with; the adult can be a family member but is most often a stranger who was simply in the same group of irregular migrants or asylum seekers (AIDA, 2018). In 2017, the AIDA report found that 712 children were detained, with 195 of which being unaccompanied. Clearly then, Bulgaria has an issue with detaining children, but Canada is no different.

Children in Canada can be detained in two ways. Firstly, children can be formally detained like any other adult, which implies that children are subject to the same poor conditions (i.e. poor nutrition and limited ventilation) that adult detainees experience. In the case of formal detainment, some children are placed in solitary confinement in order to keep them safe and prevent exposure to other detainees. As one might expect, the CCR and the International Human Rights Program (IHRP) found the practice extremely detrimental to mental wellbeing of children under the age of 18 who experience solitary confinement (IHRP, 2016). By the end of 2017 there were 162 detained minors (CBSA, 2018). Alternatively, to formal detention, children in Canada can be de facto detained with their parents, since it is their parents that are subject to detainment and not them. The children de facto detained are quite often citizens of Canada, thus implicating the state is detaining its own citizens. Children detained in this manner do not experience the appeal reviews that formally detained children would, since it is not their case that is under consideration and since they are only detained in order to prevent familial separation (IHRP, 2016). Further, it has also been found that the de facto detained children experience longer durations of detainment; the IHRP found that in 2014-2015 the 161 formally detained children experienced an average of 10 days for detainment, whereas the 71 de facto detained children experienced an average of 30 days in detention (IHRP 2016). Thus, Canada falls short when it comes to considering the best interest of the child when making decisions on detainment.

Much work needs to be done in both countries, but even more effort must be demonstrated in Canada if it is to remain a state which all others are compared to. While there is no perfect system by any means, this should not preclude a consistent attempt to improve the situation for everyone, who in this case are those who are detained in prisons instead of facilities, exposed to poor living conditions, and who experience an indefinite time in detainment. While Canada has made efforts to change some detention practices, like the reduction of minors in detention to be specific, organizations such as the Canadian Council for Refugees are not satisfied by the government’s pace or results in that implementation of otherwise positive legislation is inconsistent and there is no mechanism for oversight of the CBSA. Similarly, the amendments of the Bulgarian LFRB from 2017 contain some stronger wording on non-detention of unaccompanied minors, but the responsible institutions have been lagging in putting in place the required structures and resources.

Andreas Aravossitas is presently an intern with the Center for Legal Aid – Voice in Bulgaria. Andreas is pursuing a Master’s Degree in European and Russian Affairs at the University of Toronto, Center for European, Russian, and Eurasian Studies (CERES), Toronto, Canada. He also an Undergraduate Arts and Science Degree in Criminology.

Gross, H., & Song, Y. (2016). “No Life for a Child” A Roadmap to End Immigration Detention of Children and Family Separation. Toronto: International Human Rights Program, University of Toronto Faculty of Law.